Self Defence

Question 1

What type of defence is self defence?

Answer 1

A complete defence that leads to an acquittal if successfully pleaded

Question 2

What are the 2 seperate issues in respect of self defence?

Answer 2

Public defence or the prevention of crime: S.3 Criminal Law Act 1967
Self defence at common law

Question 3

What act clarified the law on the two types of defences but did not change the law?

Answer 3

Section 76 Criminal Justice and Immigration Act 2008 after the Tony Martin case

Question 4

What does the C.L.A 1967 state about public defence?

Answer 4

A person may use reasonable force to prevent crime or help arrest offenders or suspected offenders or persons unlawfully at large

Question 5

What case failed to use public defence?

Answer 5

R v Jones 2004 - D’s protesting about war in Iraq and caused damage to military bases arguing they were trying to prevent an international crime of aggression. not allowed as ‘aggression’ is not a crime

Question 6

Who is a D allowed to defend in self defence?

Answer 6

Themselves, others or even complete strangers, however there are rules and limitations

Question 7

What must the prosecution prove when D tries to argue self-defence?

Answer 7

The use of any force was unnecessary or if some force was justifiable
The actual degree of force used was unreasonable

Question 8

What are the 3 key issues the court looks at within necessity of force in self defence?

Answer 8

Possibility of retreat
Imminent threat
Whether D made a mistake which caused them to think their action was justified

Question 9

What case can we use to speak about possibility of retreat?

Answer 9

R v Bird 1985 - 17th birthday party when ex arrived with new girlfriend, heated argument ended up with D gouging out his eye with a glass. COA quashed conviction as it was not necessary for her to show a reluctance to fight and S.D was available

Question 10

What does the principle ‘imminent threat’ mean?

Answer 10

D will only be justified in reacting to a threat which is imminent. BUT they do not have to wait to be attacked before they can use force, in limited circumstances the law will allow a pre-emptive attack

Question 11

Which case illustrates that you do not have to wait to be attacked?

Answer 11

R v Beckford 1988 - police officer shot dead a suspect who he was told was armed and dangerous, so he feared for his own life, the victim was actually unarmed and presented no threat but Lord Griffiths stated “a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot”

Question 12

Why does the law on pre-emptive attacks have to be strictly limited?

Answer 12

Because there is a danger of vigilantes

Question 13

What was stated in Cousins 1982?

Answer 13

D went to house of father if the person he believed wanted to kill him, armed with a shotgun said he would kill the son when he saw him. Charged with making threats but could not rely on S.D as he was not in imminent danger

Question 14

What was held in Rashford 2005?

Answer 14

COA ruled that it was at least possible to plead self-defence to a charge of murder where D admitted he went out looking for revenge. When D stabbed V to ‘teach him a lesson’ however the court upheld his conviction as it was not necessary to use force here

Question 15

What was the difference in decisions in AG’s Reference No.2 of 1983 (1984) and R v Malnik (1989)?

Answer 15

AG - was allowed to use S.D as threat was sufficiently imminent for him (shop been attacked so made some petrol bombs)
R v M - went to flat of man who believed has stolen valuable cars from his associate, knew man was violent so took a rice flail, convicted of possession of an offensive weapon and upheld as he created the dangerous situation himself

Question 16

What is subjective and objective about the principle ‘whether the D made a mistake which caused him to think their action was justified’?

Answer 16

If D makes a mistake which leads him to believe he needs to take defensive action the courts will assess D’s conduct on the facts the D believed them to be (subjective) even if the mistake was not a reasonable one to make (objective)

Question 17

What case supports the principle of D making a mistake?

Answer 17

R v Williams (Gladstone) (1987) - D on a bus when he saw man attacking a youth but in fact man was trying to arrest youth who had just mugged an old lady, D lept off the bus and asked what was going on, man told him he was a police officer which he was not so D asked to see his ID and there was a big struggle where man was injured
D was allowed to use the defence as he believed on all reasonable grounds the man was acting unlawfully

Question 18

What act confirms the rule laid out in Williams (Gladstone)?

Answer 18

S76 (4) Criminal Justice and Immigration Act 2008

Question 19

What must the prosecution prove in regards to the degree of force?

Answer 19

That the use of force was unnecessary but also that if some force was justified the degree of force used was unreasonable

Question 20

Who decides if the degree of force in the circumstances was reasonable?

Answer 20

Tje jury

Question 21

What happens when a defendant uses excessive force? and what case illustrates this point?

Answer 21

R v Clegg (1995) - soldier on checkpoint duty in Belfast fired 4 bullets driven by joyriders who failed to stop. Scientific evidence showed 4th bullet fired when car was passed and 50 feet along the road, this bullet killed the victim in the back seat so D was charged with murder and upheld by HOL as they said the first 3 shots counted as self-defence but the 4th was excessive

Question 22

What is one of the most famous cases to do with excessive force in self defence?

Answer 22

R v Martin (2001) - D shot 2 burglars in the back as they run away from his farmhouse, one of them died, S.D plea was rejected as COA ruled he used disproportionate or excessive force. On appeal his sentence was reduced to manslaughter on the grounds of D.R as he had a paranoid personality disorder

Question 23

Why may there be conflict with The HRA 1998 and S.D?

Answer 23

Article 2 states everyone’s rights shall be protected by law but deprivation of life does not contravene that article if it results from force which is no more than absolutely necessary
Article 2 only applies when the aggressor dies, it does not cover threats ora attacks on properties BUT english law does allow reasonable force in these situations

Question 24

What is a strength of having this defence?

Answer 24

Being allowed to use force in self-defence is an exception to the normal rule that we owe a duty to not kill or injure someone else, this obligation only applies when the state cannot protect the citizen, which is why we need S.D as we cannot expect help to arrive in time in situations where S.D is needed

Question 25

What is a weakness of self defence and its subjective/objective guidelines?

Answer 25

Has the law gone too far in protecting a D? What if their belief is not reasonable? Surely we should put the objective test before the subjective one
Should it just be we have one or the other?

Question 26

How is there still room for some areas of self-defence to be developed?

Answer 26

There is an argument where women who are victims of domestic violence should be able to rely on S.D when their partner is asleep or where they have used a weapon. Was allowed in US and Canada in case of Diaz where woman succeeded in using S.D after shooting dead her husband whilst sleeping
However there is again risk here of more vigilante acts

Question 27

What is the argument in favour of protecting property in self defence?

Answer 27

What is reasonable force in this context? Should we allow people to use force to protect things as well as people? Does the law give adequate protection on householders attacking burglars?

Question 28

What is the problem with the principles based on excessive force?

Answer 28

The defence fails completely, The D may have gone too far but the degree of force might have been accepted in the circumstances of what he believed. And if he ends up killing then there is no defence to lessen this

Question 29

What case did the court not take into consideration the D’s characteristics when they should have?

Answer 29

R v Martin 2001 originally. If D is suffering from a psychiatric condition for example, the court should take into account whether the D thought the force used was reasonable under his condition but in Martin they ruled this should not be taken into consideration

Question 30

What is the reform on S.D being a complete defence?

Answer 30

Now the Coroners and Justice Act 2009 says there is a partial defence for murder where the D kills in response to serious violence against themselves or some other person provided a person of the same ‘sex and age with a normal degree of tolerance and self-restraint’

Question 31

When will the D not be allowed to use s.d even if they genuinely made a mistake?

Answer 31

If they are voluntarily intoxicated - O’Grady 1987 (drinking heavily and fell asleep woke up to friend hitting him so in s.d hit him with an ashtray, woke up and he was dead so conviction of manslaughter was upheld)

Question 32

Explain the case of R v Hatton 2005…

Answer 32

D met victim at club returned to D’s flat, battered V to death with sledgehammer, he could not remember what happened but he had a vague memory of an argument and a stick in the shape of a sword was found under D’s body which indicated D was acting in self-defence - COA ruled judge was a drunken mistake and cannot rely on defence